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Your Right to Use Medical Marijuana is not a Constitutionally Protected Liberty Interest (Duh)

Unless you live under a rock, you know that Nevada has legalized marijuana use.  But, as some poor anonymous guy named “John Doe” (I’ll call him Todd) recently learned, the fact that you can use marijuana does not mean that you have a protected liberty interest in your use of it.  In Doe v. State, 133 Nev., Adv. Op. 93 (Dec. 7, 2017), the Nevada Supreme Court ruled that a person does not have a constitutionally protected liberty interest in their right to use medical marijuana, and that Nevada’s medical marijuana registry laws do not violate due process, the Equal Protection Clause, or a registrant’s Fifth Amendment right against self-incrimination.

I just used a whole lot of fancy legal jargon that probably makes no sense to 90% of you.  Here’s what you need to know to understand what I just said:

The Right to Use Medical Marijuana is Found in Nevada’s State Constitution.

In 2000, Nevada amended its State Constitution to allow for “medical marijuana” use, i.e., marijuana use prescribed by a physician for treatment of various illnesses.  Nev. Const. art. 4, § 38(1).  So, technically Todd was correct when he argued that his right to use medical marijuana is a “constitutional right.”

But that right has limits.  To use medical marijuana, Todd needs to (1) get a written authorization from his physician, and (2) register with the Division of Public and Behavioral Health of the Department of Health and Human Services to get a medical marijuana registered user card.  The registration process has application and registry fees.

Todd sued the State of Nevada, and argued that the medical marijuana registry and its fees violated three of his constitutional rights:  (1) his right to due process, (2) his right to equal protection of the laws, and (3) his right against self-incrimination.

Due Process, In a Nutshell, Is Your Right to Have Fundamental Aspects of Your Life Free From Government Interference.

Both the Nevada and the United States Constitutions have a “due process” clause which prohibits the State from interfering with a person’s “life, liberty or property without due process of law.”  U.S. Const. amend. XIV, § 1; Nev. Const. art. 1, § 8(5).  Generally, “due process of law” means that you are given notice and an opportunity to be heard before the government comes in and takes something from you.  But, in a long series of complicated United States Supreme Court opinions that I am not going to touch with a ten-foot pole here, the concept of “due process” has gradually been expanded to include protecting from government interference certain rights which have been viewed “inalienable,” or “fundamental” – i.e., really, really important to people.

For example, one of the most recent “fundamental” rights that has been recognized as being protected by the due process clause is the right for same-sex couples to marry.  Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

The Nevada Supreme Court rejected Todd’s argument that his right to use medical marijuana is a similar protected “liberty” interest.  The Court reasoned that right to use medical marijuana is not something that has been so deeply rooted in Nevada’s history that interfering with it would uproot expectations Nevada citizens have long held.

If your response to this is “yeah, well, duh Todd,” then you get it.  If that is not your response, consider these facts:  Medical marijuana use has only been legal in Nevada for 17 years, and is still banned under federal law and in 22 other states.  And while same-sex marriage may have only been legal in a handful of states prior to the Obergefell decision, different-sex marriage has been legal for centuries.  In contrast, marijuana use, by any person, has traditionally been illegal.

Equal Protection Is Your Right to Have Laws Apply to You In the Same Way They Apply to Others

Under the Fourteenth Amendment to the United States Constitution, Nevada is prohibited from denying any citizen “equal protection of the laws.”  U.S. Const. amend. XIV, §1.  “Equal protection” is the concept that a law has to apply to Todd the same way it would apply to, say, Sally.  Todd argued that the medical marijuana registry violates equal protection because he has to register with the state of Nevada to use medical marijuana to treat his illness, whereas Sally does not have to register to use a prescription medication to treat the same illness.

As with every other area of law, equal protection has its limits.  A law that applies to citizens unequally is still constitutionally valid if there is a rational relationship between the way the law is applied and the government purpose behind the law.  We call this “rational basis” review, and “rational basis review” applies if the “interest” invaded is not a protected liberty interest (which, as just explained, the right to use medical marijuana is not).

Nevada clearly has a rational basis for the medical marijuana registry.  In 2000, recreational marijuana use was still illegal in Nevada.  Thus, the registry was a way to (1) aid government officials in ensuring that the medical marijuana laws were not abused, and (2) protect medical marijuana users from criminal punishment by giving police officers a super easy way to verify that the user could legally possess the marijuana.  And, as will be discussed below, medical and recreational marijuana use still have important differences.  Accordingly, the Nevada Supreme Court rejected Todd’s argument that he was denied “equal protection of the law” by being required to register for medical marijuana use because there is a legitimate, rational state purpose for having the registry in place.

You Probably Know What the Fifth Amendment Is, But I’ll Still Talk About It

Under the Fifth Amendment of the United States Constitution, people cannot be compelled to say anything which may be held against them in a criminal court of law.  U.S. Const. amend. V.  Nevada’s Constitution also sets forth a constitutional privilege against self-incrimination.  Nev. Const. art. 1, § 8(1).   Todd argued that Nevada’s medical marijuana registry violated his right against self-incrimination because he had to admit, in writing, that he would be using medical marijuana in violation of federal law.

Todd kind of has a point.  The federal government’s position on the states’ legalization of marijuana can be summed up as this:

“Okay, States you go do your thing and we don’t really care what you do because we are busy with much more important stuff.  But if the day ever comes where we decide to start caring, watch out because we might come after you.  But it’s good, you’re good, we’re all good…for now.”

(And THAT is why you have to pay for marijuana in cash, because any bank that operates across state lines (i.e., falls within the federal government’s authority) is justifiably super apprehensive about the future of this whole industry).

The Nevada Supreme Court rejected Todd’s argument because Todd is not required to register for medical marijuana use.  The Nevada Supreme Court’s reasoning was basically this:  Todd, you are the one choosing to treat your illness with marijuana.  Nevada does not require you to smoke weed.  You can pop a Xanax Todd, and never have to register anywhere.   And if you do apply to for a registry card, and don’t complete the process or are denied, there are no civil or criminal repercussions against you because there is no proof from your registration application, alone, that you ever actually used or possessed medical marijuana.   Therefore, Todd, you do not self-incriminate yourself by filling out a piece of paper that states you may or may not at some unspecified point in the future possibly possess medical marijuana.

How Does All of This Fit Into Recreational Marijuana Use? 

In 2017, Nevada legalized the use of recreational marijuana (i.e., use for any purpose) for persons over the age of 21.  NRS 453D.020(1).  Unlike medical marijuana, our right to use recreational marijuana is not a constitutional right, since we did not amend our constitution to provide for it.  This is just one of the many differences between medical and recreational marijuana use.

Another is that Nevada does not require registration for recreational marijuana use.  You can let that breath out that you’ve been holding.

Also, the amount of marijuana that can be legally possessed is different.  Medical marijuana registry card holders can possess up to 2 ½ ounces of marijuana, 12 marijuana plants, and however many edibles either equate to 2 ½ ounces of marijuana, provided the total amount of THC in the edibles does not exceed 10,000 milligrams within a 14-day period.  NRS 453A.200(b)(3); NAC 453A.704.  Recreational marijuana users can only possess 1 ounce of marijuana, and 6 marijuana plants at any one time.  NRS 453D.110.

Please Do Not Contact Me With Marijuana Questions

Because I am a lawyer, I must include the following disclaimer: This post is not intended to provide legal advice to you on your rights to use marijuana in Nevada or under federal law.  Also, I do not know if Todd is actually John Doe’s name.

This post is solely intended to tell you the sad story of some guy who might be named Todd (but is probably named something else) who just really wanted to consume a lot of marijuana without having to tell anyone about it.